A view of the courtroom during the June 4, 2013, hearing in which Aurora movie theater shooting suspect James Holmes formally entered a not guilty by reason of insanity plea. (Andy Cross, The Denver Post)

Attorneys for the Aurora movie theater gunman on Monday painted a picture of a man single-mindedly determined to invoke his constitutional right to a lawyer after his arrest outside the theater.

Defense attorney Kristen Nelson said James Holmes asked for a lawyer three times in seven minutes during conversations with two police detectives in an interrogation room about two hours after the shootings.

“How do I get a lawyer?” Nelson said Holmes asked one time. At another: “I want to invoke the Sixth Amendment.” And another: “I want a court-appointed attorney.”

But that legal mindfulness is at odds with the picture Nelson painted of Holmes after the questioning ended.

After detectives left the room, Nelson said Holmes made puppet gestures with paper bags that investigators placed on his hands to preserve gunshot residue. She said Holmes told police he thought the bags were for popcorn. And then, Nelson said, Holmes sat so still for so long that, watching later on video, Nelson thought the recording froze.

Nelson argued Holmes was held “incommunicado” from attorneys for hours before detectives returned later in the afternoon to question him about explosives in his apartment. Meanwhile, a public defender and a private attorney hired by his mother separately spoke with a detective in trying unsuccessfully to meet with Holmes, Nelson said.

What Holmes told investigators allowed police to diffuse the bombs safely, but Nelson said those statements should not be allowed to be used against him at trial because he was not able to have an attorney present.

Add this to the details that make the prosecution of Aurora movie theater shooter so unique: Almost nobody in Colorado pleads insanity.

According to new numbers provided by the Colorado Judicial Branch, defendants entered insanity pleas in only nine-hundredths of a percent of all felony cases between 2001 and 2011. That’s 0.09%, or 9 times out of every 10,000 cases. And it is way less than studies have shown the insanity plea is used in other states.

For instance, a study of insanity pleas in eights states done in 1991 found the plea was used in between 5.7% and 0.3% of all felony indictments in those states. (One of the limitations of assessing the insanity plea, I’ve been told, is that there has been almost no research on its frequency or success rates in the last 20 years.) It is commonly said that the insanity plea occurs in about 1 percent of all cases.

Colorado’s success rate for insanity pleas across all cases where the plea is entered — about 28 percent of the time — is more in line with the national average.

So, too, is Colorado’s rate for insanity pleas in first-degree murder cases, like the Aurora theater shooting. Between 2001 and 2011, 39 of the 1,022 defendants charged with first-degree murder after deliberation pleaded insanity, according to the state numbers. That’s a rate of 3.8 percent. In about a third of those cases, the defendant was eventually found not guilty by reason of insanity, though, as we reported earlier this month, juries almost never deliver insanity verdicts in murder cases in Colorado.

A view of the courtroom during the June 4, 2013, hearing in which Aurora movie theater shooting suspect James Holmes formally entered a not guilty by reason of insanity plea. (Andy Cross, The Denver Post)

Today’s story on the enormity of the proposed jury pool for the Aurora theater shooting trial — it would be the largest in state history and among the biggest ever called in the United States — notes why it will be so difficult to seat a jury in the case: The scope of the tragedy involved, the amount of media attention and debates over the insanity defense and the death penalty mean many will be called but few will be eligible.

But what will it take just to handle all those prospective jurors?

The jury assembly room in the Arapahoe County courthouse seats 350 people. That’s almost enough to hold the waves of 400 jurors at a time that Judge Carlos Samour envisions coming into the courthouse.

Rob McCallum, a spokesman for the Colorado Judicial Branch, said the jury pool for the theater shooting case will be randomly selected from people in Arapahoe County’s “jury wheel.” People in the group can only be selected once per year for jury duty — hence the wheel metaphor — and the county and district courts in Arapahoe County usually summon about 1,500 people a week (spread over three different days) for jury duty for all trials. That means there will be roughly 444,000 people in the wheel when Holmes is scheduled for trial on February 3.

At a hearing this week, Samour said he intends to issue summonses for 5,000 jurors specifically for the theater shooting case, with the hope that 3,200 will show up for duty. Those 3,200 would be split over four days — the Thursdays and Fridays of two consecutive weeks. The 800 jurors a day would further be broken down into morning and afternoon sessions of 400 jurors each.

A view of the courtroom during the June 4, 2013, hearing in which Aurora movie theater shooting suspect James Holmes formally entered a not guilty by reason of insanity plea. (Andy Cross, The Denver Post)

As today’s story on the historically long odds James Holmes faces in his insanity plea for the Aurora theater shootings notes, Colorado is one of only 11 states in the country that places the burden of proving sanity on the prosecution.

Thirty-five states say it is up to the defendant to prove insanity. Four states — Kansas, Utah, Idaho and Montana — have abolished the insanity defense altogether or have a “guilty but insane” verdict.

James Holmes sits in the courtroom during his arraignment in Centennial on March 12, 2013. (RJ Sangosti, The Denver Post)

James Holmes wants to plead not guilty by reason of insanity to the killing of 12 people and the wounding of 70 others in the Aurora movie theater attack.

In a filing Tuesday, Holmes’ lawyers wrote they intend to “tender a plea of not guilty by reason of insanity.” Holmes would need the judge’s permission to change his plea. The plea change could come as early as Monday, the next scheduled date in Holmes’ court case.
The notice filed Tuesday starts a series of dominoes in the case.

Because a judge entered a standard not guilty plea on behalf of Holmes — and over the objection of Holmes’ attorneys — at arraignment, Holmes’ attorneys will have to show “good cause” why they should be allowed to change the plea to insanity.